Supreme Court of Virginia
Samuel H. Thornton, Jr. v. Limor Glazer, D.p.m.
April 21, 2006271 Va. 566
Summary
The court held that the trial court erred by refusing to admit a treating physician's deposition testimony for rebuttal and by refusing an adverse-witness jury instruction concerning deposition testimony. Under the applicable procedural rule, a treating physician's deposition may be used for any purpose unless the court finds good cause to require live testimony, and deposition testimony of an adverse party must be treated like live testimony for purposes of the instruction. The judgment was reversed and the case remanded for a new trial.
Holding
- Use of treating physician's deposition testimony. A party may use the deposition testimony of a treating physician for any purpose, including rebuttal, without regard to the physician's availability or prior live testimony, unless the trial court finds good cause to require the physician to testify in person. The trial court therefore erred in refusing Thornton's proffered deposition testimony.
- Adverse-witness jury instruction based on deposition testimony. Deposition testimony of an adverse party admitted as substantive evidence is oral testimony and must be treated like live testimony. A plaintiff is bound by the adverse party's testimony to the extent it is reasonable and uncontradicted by the plaintiff's evidence, but is not bound by testimony contradicted by other evidence; the trial court therefore erred in refusing the instruction.
Docket 051612.